ANALYSIS: Questions remain following polygamy sentencing

Nearly four years ago, polygamy charges were announced by the B.C. Prosecution Service against two fundamentalist religious leaders associated with Bountiful.

After being tried and found guilty, Winston Blackmore and James Oler were sentenced to six months and three months, respectively, to house arrest.

Whether the punishment is appropriate for the crime is up for debate — Blackmore’s defence lawyer Blair Suffredine joked in a press scrum after the sentencing ruling that, “I’ve long said that if you have 25 wives, it’s hard to conceive of a bigger punishment…”

However, the challenges in getting to a successful polygamy prosecution date back almost 30 years.

And that’s the rub — that after 27 years of police investigations and litigation in the courts, the punishment delivered by Justice Sheri Donegan consists of being confined to a residence 24/7 except to go to work. Or grocery shop. Or to a medical facility in case of an emergency.

The sentencing ruling has caused a furor of reaction in local social media circles, and it’s easy to understand why. During the trial, it was revealed that Blackmore and Oler married underage girls, some as young as 15 years old.

So why, after 27 years, is the punishment only six months of house arrest?

That’s not an easy question to answer and there are many layers to parse through in understanding how the proceedings got to the eventual outcome.

The members of the community were first investigated in the early 1990s, however, charges were never approved by the crown at the time because authorities believed a prosecution would fail based on the constitutional vagueness of the polygamy laws.

It took 20 years for that to change.

At the time, authorities relied on legal opinions rather than testing a prosecution in court, which would establish a case law precedent regardless of the outcome.

Instead, Richard Peck, a special prosecutor appointed by the government in 2007 to examine the polygamy allegations in Bountiful, declined to pursue charges, but recommended a constitutional reference be brought before the courts to settle the vagueness of the polygamy laws.

Four years later, that process ended, with Justice Robert Bauman concluding that the positive effects of the Section 293 — the polygamy prohibition — outweigh the negative effects on the infringement to freedom of religion and freedom of association.

Armed with that ruling, the provincial government appointed Special Prosecutor Peter Wilson in 2012, who approved polygamy charges two years later.

However, in between Peck’s recommendation to pursue a constitutional reference case and the eventual ruling, there were additional actions from the provincial government that complicated the issue.

Leonard Doust was retained to examine Peck’s conclusions into the Bountiful investigations, but Doust agreed with Peck’s assessment.

The situation changed when former Attorney General Wally Oppal appointed Terry Robertson in 2008, who approved polygamy charges, however, they were thrown out of court by Justice Stromberg-Stein a year later, who also quashed Robertson’s appointment based on allegations of ‘special prosecutor shopping’.

Tuesday’s sentencing in Cranbrook Supreme Court is the culmination of the uncertainty over a polygamy prosecution that has existed for nearly three decades.

All that for a six- and three-month sentence of house arrest.

But how does the court arrive at that punishment, given that the Canadian Criminal Code specifies a maximum five-year sentence?

Under the Code, sentencing aspects include principles such as deterrence, denunciation and separation of offenders. To come to a sentencing decision, judges rely on precedent — what sentences were imposed for similar offenders who committed similar crimes in similar circumstances.

In this case, there was no modern precedent to guide Justice Donegan.

Donegan told the court that the convictions and sentencing will send a denunciatory message to anyone practicing polygamy and serve as a deterrent in and of itself.

Whether that’s the case remains to be seen.

When Wilson was appointed in as special prosecutor in 2012, his mandate also included investigating allegations of sexual interference, sexual assault, invitation to sexual touching and other related crimes allegedly relating to fundamentalist Mormons in Bountiful. It was amended two weeks later to include polygamy — the charge which was eventually approved, but not the first set of allegations.

Why that was the case is unknown, but, as always, the burden is on the Crown to prove a person charged with an crime is guilty beyond a reasonable doubt.

It remains unclear as to what happens now, specifically in Blackmore’s case.

Polygamy, or plural marriage, is a central tenet of the fundamentalist Mormon faith and Blackmore has long remained adamant that he was not going to deny his faith throughout the trial process.

What, if anything, prevents him from returning to Bountiful and continuing to maintain his polygamous relationships?

In Oler’s case, he has been ostracized from the community and lives in another province by himself in near isolation.

But given the conclusion of these proceedings, it’s still worthy to ask whether the whole process, from charge approval to conviction and sentencing, has sent an appropriate message?